by Dr Andrew Blick Reader in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust
14th February 2020
Criticism of the European Union in United Kingdom (UK)
political discourse has often focused upon the proposition that as a project it
is federal in nature. For this reason, according to such theses, membership has
always been incompatible with UK constitutional traditions, and poses an
unwelcome threat to the integrity of the UK as an autonomous ‘sovereign’ state.
It is in its response to such assertions that the supposed pro-European
movement committed what was perhaps its fundamental error. Representatives of
the mainstream integrationist side of the argument allowed themselves to be
imprisoned by the logic that flowed from acceptance of the premise that, from a
UK perspective, the undesirability of federalism was axiomatic. Rather than
challenge this presumption, the typical retort was to claim that the European
Union (EU) (or its predecessors) was not federal in nature; or that any
tendencies in this direction could be diluted or mitigated, and that UK
membership was therefore – at least on balance – desirable.
It’s a new world in UK-EU relations. All — Europeanists, federalists, the EU itself — have to find their bearings in it. All have to refocus on the tasks most relevant for the future.
So also do all who wish for the UK to survive as a
Following are five priority tasks.
1. To hold the UK together.
The odds are not good on this. It requires a skillful
and intense struggle against secessionism in Scotland. It requires the best
inter-communal political management in Northern Ireland. And it requires
keeping Brexit quite soft.
Any harder Brexit means a harder inter-Irish border
and/or Irish Sea border, and a strengthening of the economic argument for
secession in both Scotland and Ireland. This would override any
anti-secessionist political struggle no matter how skillful.
This in turn requires the Johnson Government to
reverse its policy on terminating EU trade negotiations at the end of 2020.
Failing that, the harm from a break-up of the UK cannot
be overstated. It will, as a knock-on effect of Brexit, have still worse
consequences than Brexit itself.
It will also lead to a further radicalization toward
both extremes in politics — and in each successor country to the UK. The
damage of break-up is not only to the economy but to the psyche. It deprives
politics of its established moorings and balances. It reduces England to a
shadow of its former extended national self. It leads to scapegoating for the
blame on one side, to utopian fantasies on the other about what wonders the
country can work once it’s all on its own.
It might in theory someday become safe, were the UK to
have become in some distant future a member of a full-fledged international federal
government, for the parts of the UK then to safely become separate subjects alongside
England within that larger federation. Until then, break-up of the UK is a disaster
for all parts of the UK.
It is also be a disaster for the rest of the world, in
ways few have yet begun to imagine.
2. To develop a security culture within the EU that can balance its economic and humanitarian cultures.
The EU was built around economic tasks plus human
rights. This is only one half of a normal political culture. It leads to biases
in EU thinking and policy, biases that have in the last decade put the EU
itself at risk.
All societies and governments, Machiavelli and Pareto
taught us, need lions as well as foxes. That is to say, they need to have
plenty of people with an instinct for group persistence norms and strong
security policies, not just people with combinational norms and maneuvering
Jonathan Haidt’s important book, The Righteous Mind,
makes pretty much the same point, drawing upon contemporary research in moral
and behavioral psychology. It also shows a widespread trend, within the modern
educated classes or elites, toward a dangerously one-sided embrace of one of
these sets of norms, the combinational one; and blindness toward the other set,
the group persistence one.
It is a problem that afflicts all modern governments
in some degree. For obvious institutional reasons, it affects the EU even more than
most: It is an incomplete government, it lacks the normal balanced complement
of governmental functions, and its institutions and procedures are more heavily
weighted to its educated bureaucratic elite than are national governments.
One aspect of correcting for this is to rewrite the
book of the EU’s narrative in relation to the nationalisms of its member
states. Hitherto its narrative has leaned heavily to the anti-nationalist side.
However, nationalism is an encapsulation of the security and group persistence
sides of a polity’s thinking. It is not to be dismissed cavalierly.
The EU narrative needs to be reformulated as an
integration of the nationalisms of the member states rather than a removal of
them. “Integration” in this matter means an upward reinforcement of the core
elements of the members’ collective pride sentiments and of their security
policies, anchoring them in the supplementary level of European security
culture and instruments. It includes also, to be sure, a somewhat downward
modification of the member nationalisms for mutual compatibility, lopping off
mutually contradictory parts of them and overcoming their excesses; but this is
a subordinate aspect: a consequence of doing the thing together, and indeed of the
upgrading of the nationalisms by rewiring their narratives to fit together in a
supplemental common narrative. Here we might recall the basic point of David Mitrany’s
functionalism, a point that has always been foundational for federalism as well:
that enforcement against members of the community is mostly a by-product of
their doing positive things together and the build-up of the joint spirit, not
the main thing in forming the community.
The greatest mistake of the Remain campaign was that
it framed the issue almost solely in terms of economics, relegating national
pride and national importance to the hands of the Leave campaign. The mistake
became a national tragedy.
This tragedy stands to repeat itself in other forms
and other countries, if the roots of it are not corrected.
A Latvian Europeanist has written of the need for the
EU to stop presenting itself on the lowest level of Maslow’s ladder of human
needs, as a mere economic benefit, and start talking about its benefits to
Latvia higher up the ladder of psychological needs. It is something that would
not be hard to do, as the EU is, alongside NATO, what has enabled Latvia’s
self-realization as a free country, one with some real security and a real say
in the world, something Latvia had never had in all its previous history.
The case is less trivially obvious for the older EU member states, but the same
point is essentially true for them also: the EU has been presented too much as
a truncation of their nationalisms, painting the latter as primarily evil and
as the enemy, rather than as the fulfillment of them, which is something that
the EU in fact also is, and ought to be.
Karl Deutsch, in the foundational work of academic international
stressed that a union of countries, in order to be sound and sustainable, must
integrate and gain willing consent from all the major, legitimate constituent
entities and elites going into it, including the major parties and factions on both
sides of the political spectrum within its member states. This is the
corollary, on the level of forming a Union, to Pareto’s point about the need of
every society for both combinational-welfare elites and persistence-security
elites. It means that integration of both sets of national elites, and of their
mindsets and policy work, is essential for a new union.
There has been a deficit on one side of this equation
in the case of the EU, due to its almost exclusive focus on economic and
humanitarian work. The consequent selection of personnel, within postwar
European national elites as well as on the EU level, is one that the late chief
theorist of the Italian school of European Federalists, Mario Albertini, described
as all fox no lion. He added that the leonine aspects of political culture got exported
to the U.S. and NATO; leading in his view to a degeneration of elite thinking
on Europe’s national and EU levels alike.
The same point led others, such as Spinelli, to suggest
that much of the European moralizing against the U.S. was childish and
irrational, and to hope for a better trans-Atlantic relationship after Europe’s
union was completed. Decades have since passed and the problem remains, or even
An EU security culture has meanwhile emerged, but with
an internal contradiction: it develops under a condition of a foxy culture
rather than a leonine one. Further, its joint declaratory security policies are
formulated in the absence of a proportionate joint security arm and structure, giving
added incentive for a drift toward rhetorical combinational declarations
instead of group persistence ones. This contradiction translates often into
calls for a European security culture that is strong in a paradoxical sense: strong
more against the
collective power of the West than as a part of it. In a recent survey on the
meaning Europeans give to a “strong Europe”, this view was expressed by
supermajorities in the form of affirming that the main purpose of a strong EU foreign
policy is to be neutral between America on the one side and Russia and China on
is no easy solution to this conundrum. Development of a joint security culture
was always going to be a tough task, involving integration of national security
cultures. It is eased in one way by the shrinkage in the practical role of the
security cultures within the individual European nations, but made more
difficult in the deeper sense of the degenerative simplification of mindset
that Albertini found connected to that shrinkage.
Nevertheless, the present period presents an opportunity
for some of this rebalancing of EU culture in the security direction. The
opportunity is present in the person of the new President of the EU Commission,
Ursula von der Leyen. As German defense minister, she had it as a part of her
job description to imbibe elements of the national and Western security
culture. It was not, to be sure, as strong a Western security culture as it had
been in the days of the Cold War, or even in the 1990s under Helmut Kohl; it was
affected by the almost ironic redefinition of “strength” described above; but
it still also had real elements of a concrete security culture.
Here then is a major new task that President von der
Leyen needs to focus on in her new role: how to bring a real security culture into
the EU; how to make it substantial there; how to embed it into the EU culture.
This is a critical reform for the EU. It is the more
critical for having a novel, amorphous-sounding cultural aspect, not just an
institutional competences one.
The cultural reform aspect should get some
front-loading. Without it, the extension of institutional competences to the
security sphere is not likely to work very well, in light of the paradox of
security-concept outlined above. Still, even a simplistic build-up of
institutional personnel in this sphere would inevitably help in bringing in a
better balance of the economic and security sides of the EU personnel culture.
Absent this reform, it will be hard to avoid further
repetitions of the mistakes (see task 3 below) that brought on not only Brexit,
but brought also dangerous losses to the EU in the loyalty of its citizens
throughout the Union.
3. To avoid any repetition of the mistakes of 2015-16 on migration, and the related mistakes of loose talk of Turkish membership.
I underline “any”. Any such repetition would lead to
further damages to the EU’s foundations, potentially dwarfing Brexit. Leaderships
in Europe need to show to the public that they “get it” on migration concerns
and will always henceforth follow a policy of careful management of
“Careful management” means, first, a policy in which it
is emphasized that the policy is always subject to state regulation, not a form
of laissez-faire. Second, one in which pragmatic attention to domestic societal
cohesion and acceptance of the policy will be recognized as a principle in
itself and take precedence in the formation of the policy, rather than being
dismissed sarcastically as a deplorable prejudice, or as ignorance of
macroeconomic needs for more labor. Expressions of concern over societal
cohesion will need to be met in the future with the respectful attention that
such political inputs normally get.
This does not prejudge what the outcome of such a
change of tone will be in terms of numbers admitted. What it does prejudge is that
no outcome should ever be presented as a matter of a non-discretionary
principle of open entry from outside today’s EU.
The case of UK policy and language on EU expansion and
migration, during the Blair, Brown, and Cameron governments, may help make the
point clearer. The point is not that there was necessarily something inherently
wrong in the number of migrants that came in from Eastern Europe. What was
inherently wrong, disastrously wrong, was for the UK government to waive its EU
right of numerical regulation of this entry and its pacing. The consequences
were seen in the loss of public trust in the government’s and elites’
attentiveness to the fundamental societal need for safety of public spaces and
security of jobs. That loss of trust played itself out in the Brexit vote; a
vote whose economic costs will far outweigh all the gains that economists had
projected from the migrant cohort that came in.
The same point applies to Turkish membership. Polls
showed already many years ago that, were Turkey to be admitted to the EU, large
majorities in a number of core EU countries would want out of the Union. This
was due once again to the combination of the number of immigrants with the
cultural distances and risks they would bring. It is the EU’s tragedy that much
of its own language, along with that of several of its member nation leaderships,
indicated a failure to grasp the full import of this concern, or even to accept
its legitimacy. Here too there was a propensity to deplore clear expressions of
the concern rather than engage with it as legitimate. Here too, the failure to understand
the other side of the issue seemed entrenched and persistent, something that
would inexorably return even after the periods when it had seemed discarded. There
was a time when Mrs Merkel, following electoral losses, changed tone on Turkish
membership and began speaking in tandem with Mr Sarkozy as if to be closing the
door on it. But a few years later she and others were back to statements with a
tone of reopening that door. This, alongside the statements welcoming the migrant
influx of 2015, was the factor that raised the Brexit vote over the 50% mark.
It also brought a dramatic rise in votes for the most often deplored parties throughout
The mistakes on migration and Turkey have taken a
heavy toll on the EU. The damages to the project of integration have been of historic
proportions. They will be hard to repair. It is never easy to repair major
historic damages; history moves on, and the damages usually compound themselves
with new layers of consequences, outpacing the repairs.
Nothing could be more important than to learn from the
recent mistakes and make sure they are not yet again repeated. Otherwise still
more severe damages will be suffered, potentially terminal ones.
The heart of the matter is to show to the public that
the EU and its supporters have in fact learned the lessons in depth, not just
in the sense of making a tactical retreat; and can be counted upon to heed the
lessons and prevent recurrence. The spirit of this matter — the readiness to
recognize the cautionary side of the issue as legitimate and embrace it as an
equal part of the debate, the definitive turn away from a spirit of dismissing
the concerns on that side — is no less important than the substance of the
policy. It is the only way to regain the trust of half the public.
4. A discriminating UK policy on immigration that keeps EU citizens at the front of the line.
I use the word “discriminating” here in the
old-fashioned English usage, as in “discrimination is the hallmark of an
educated person”. I am aware that this usage, the correct one in fact, is
treated as odd today, even sometimes thought of as revealing bad attitudes. That
is perhaps part of the problem. A sober person should not be indiscriminate.
Societal dislocation from migration is always roughly
proportional to both the number of in-migrants and their cultural distance from
the host society. EU and First World immigrants are the ones culturally closest
to British society; and the ones close enough to British per capita income
(pci) or wage levels as to produce only limited cohorts of migrants to Britain.
It is a paradox of Brexit that, in light of the UK’s unavoidable needs for
workers, Brexit is likely to lead to an increase in the very migrant cohorts
that are more difficult to assimilate instead of the EU ones that are easier.
This must weigh heavily in private on the breasts of
Brexiters, despite their public calls for “global Britain”. The dialectic of
their debating position has cornered them in a more indiscriminate policy, one
that exacerbates their own worst fears and runs opposite to what most of them
Tories are in principle against indiscriminate opposition
to all discriminations; their theory discriminates between sound and unsound
prejudices, reasonable and unreasonable discriminations. They would, in logic,
favor a perpetuation of the existing discrimination in favor of European and
Western countries as sources of immigration. Labour’s trade unions would
likewise so discriminate, out of the strong concrete interest of their members
and communities. All that either side needs is to get past its rhetoric and
back to their own actual intentions. That may not be easy when the rhetoric has
become entrenched, not only on each side, but in the dialectic of the debate
between them, as if to form a dialogue of the deaf. But it is something they
surely ought to be able to do.
5. UK re-entry into the EU.
This is a long shot. But then, so is saving the UK itself
from breakup. Both are nonetheless targets that it is necessary to be shooting for.
As the harm from Brexit comes to be suffered, the
extremists in both major parties will project the blame for the harm onto what
they will call an insufficiently radical government program in UK domestic
policies; the more readily, as it is by their dreams of transformative programs
for domestic national regeneration that they justify their support for Brexit.
For this deficiency of radicalism, they will be immediately ready with remedies
to propose. They will campaign for ever more radical national policies with
enthusiasm and without delay.
It will be important for there to be strong voices
that place the blame for the harm on its actual source, Brexit itself. This
point will not be perceived in its true force if it is left on the level of an
intellectual abstraction. To gain force, it has to be coupled with proposing the
logical conclusion: re-entry.
A campaign for re-entry may fail in this stage, yet it
will still be of enormous educational importance. Unless it is visible, there
will be very little to restrain the projection of the blame elsewhere, and therewith
a slide into further radicalization. Perhaps a re-entry campaign would lead
only to temporization and limitation of the extremes at this stage, and to
keeping options open for the future; but even that would be doing the UK a
There are several additional critically important
tasks ahead. These might be lumped under the rubric of the roles and policies
of “global Britain” farther afield from the EU. There is its role in NATO.
There is its global environmental policy. There is its potential trade deal
with the U.S. There is its influence on U.S. global policy. That influence in
the past has been often strong, indeed history-changing; it may need to be so
again in the present period. I intend to address these matters in a follow-on
The faults in the democratic system have been with us for quite some time. At the same time, the crisis of democracy coincides with the increasing danger arising from a number of man-made existential risks, such as a global warming, biotechnology or a global nuclear war, which can happen at any time. Among the biggest risks facing Humanity in the next two decades is Artificial Intelligence (AI), and in particular its mature form Superintelligence – also called Artificial General Intelligence (AGI). This is the type of AI that will be thousands of times more intelligent than all humans, and which could wipe out the human species either by a malicious intent or because of an erroneous design.
So, how could humans save themselves from such
a potentially perilous future? The overall solution lies in a deep reform of
democracy and in changing our view from an insular, national perspective and
instead focus on the Humanity’s survival. We need a new system of democracy for
two reasons. The first one is to help us navigate the next several decades
safely by being united in a Human Federation created with new principles of
democracy. The second one is to create Superintelligence that would inherit our
Universal Values and our democratic principles so that it becomes our friend
rather than an adversary.
However, to have any meaningful impact, a deep
reform of democracy must happen really quickly, by about 2030, while we may
still retain control over the maturing Superintelligence. We have no time to
create a new global organization with sufficient economic, technological and
military powers that could initially act as a de facto World Government. The
most realistic option seems to be to convert and existing organization, which
could be being gradually converted into a Human Federation.
Tony Czarnecki will argue that despite the
current adversary tide in the European Union, it is this organization, selected
out of 10 possible candidates, which after being converted into the European
Federation, has the best chance to become the foothold for the future Human
Tony Czarnecki is an economist and a member of Chatham House, deeply engaged in global politics and the reform of democracy. He is also an active member of London Futurists. His very wide interests spreading into politics, technology, science and economics, gave him the necessary insight for searching for the solutions to minimizing Humanity’s existential risks. That was the subject of his previous book: “Who could save Humanity from Superintelligence?” In his new book ‘Democracy for Human Federation – Coexisting with Superintelligence”, he focuses on the scope of reforms needed for democracy to withstand the Humanity’s challenges to coexist with Superintelligence in the very near future.
Comparing Prorogation in the 17th Century with Prorogation in the 21st Century
By Dr. Andrew Black, Digit Ltd Senior Research Fellow at Global Policy Institute; Senior Research Fellow, Brunel Business School
13th September 2019
“You mean they actually vote for the lizards?”
“Oh yes,” said Ford with a shrug, “of course.”
“But,” said Arthur, going for the big one again, “why?”
“Because if they didn’t vote for a lizard,” said Ford, “the wrong lizard might get in.”
Douglas Adams, in “So Long, And Thanks For All The Fish” (1984) ch. 36
The main aim of
this article is to compare and contrast recent events in Parliament in 2019
relating to the Prorogation of Parliament, with that of another serious
constitutional crisis, the lead up to Civil War in the 1640s in England,
Scotland and Ireland. Necessarily this will be a relatively high level account,
and aims to pick up some of the more striking similarities that have appeared,
including the recent disagreements over the prorogation of Parliament.
While there was a
long period of disagreement between Parliament and the executive, as
represented by the monarch (CEO) in the seventeenth century, the actual slide into a fundamental split
between executive and legislature occurred relatively quickly. With the benefit
of hindsight it might be said that there was a process of tit for tat that
“inevitably” led to a complete breakdown in communications, and to Civil War.
Yet, it is not clear that observers at the time saw this as being an inevitable
process. Rather it was one of forced experimentation driven by factors outside
of the direct control of both the King and Parliament.
As will be shown
below, there are similarities between then and now. True, the “executive” today
sits within Parliament rather than outside of it. Yet, the official government
is still conducted on behalf of the “crown”, and the Prime Minister has a
number of powers and attributes that smack of a continuation of the former
royal prerogative by other means. And as recent disagreements have shown, there
appear to be worrying gaps in the UK’s unwritten constitution that make a shift
to more authoritarian government behaviour easier to achieve than some might
The main part of
the article pulls together the sequence of events that led up to Civil War in
the seventeenth century. If this was an unintended consequence of other
interactions, so something similar might be argued for the Brexit debate today.
It too is revealing deeper rifts and fractures in the system of British
political and social governance that may have further, as yet unknown,
conclusion is that the executive should avoid picking fights with the
legislature. When riled, Parliament prevails and ultimately controls executive
decision and policy making. The fate of close advisors to the executive is also
highly insecure, and conflicts between the legislature and executive end badly
for them – indeed can be terminated with “extreme prejudice” as the current
In some respects,
Parliament achieved greater autonomy in the seventeenth century. In particular
as the Long Parliament seized the initiative in a number of areas, including in
the right to prorogue itself without recourse to the monarch/chief executive.
Setting the Scene
The recent uproar
over the sneaky way in which the Johnson government has smuggled in a closure
of Parliament under the guise of “pretending” this is just any normal
prorogation encourages one to cast around to find earlier examples of when this
kind of behaviour was last seen.
And for this it is
useful to cast our eyes back to the stormy days of the seventeenth century and
to the events that led up to the English Civil War – always considered a
crucible of English democracy.
Are there any lessons to be drawn from a comparison of events around
prorogation then, and how its misuse has been resuscitated by the latest form
of Conservative government in the UK?
suggests that there are indeed several points in common, and that the general
policy advice to anyone serving as a chief executive (as King in the
seventeenth century, and as Prime Minister in the twenty first century), is to
be fearful when MPs take to the war path. It does not end well for the chief
The crises of the
twenty-first and seventeenth centuries have another point in common. In both of
them issues of regionalism and federalism played a crucial role in the overall
development of what later became the United Kingdom, and might today possible
change into a “former UK”. Indeed, there is a direct continuity between the
crises of the seventeenth century and today as can be seen in the (still)
unresolved difficulty with Ireland, and increasingly in the case of Scotland
All of these
crises came together in the seventeenth century to create the circumstances
leading to a Civil War between Parliament, the chief executive, and the
regional administrations in Ireland, Scotland and England. All of which
suggests that the arguments and emotions awoken by Johnson’s attempt to
hoodwink Parliament on the prorogation issue have lit a fuse that may well
eventually blow up in his face, leading to much larger disruptions than he
could have ever envisaged.
on events in the twenty-first century, let us turn to how things looked in the
seventeenth century, and how the issue of prorogation played an essential part
in contributing to the lack of trust between Parliament and the executive, that
was to lead to Civil War. And in so doing some parallels can be detected between the different “planets” occupied by
the main protagonists then, Parliamentarians, monarchists, Catholics, Anglicans
and Presbyterians, with the similarly entrenched views of Hard Brexiteers, Soft
Brexiteers and Remainers today.
in the seventeenth century – the case of Charles I
Charles I inherited his thrones from his father, James
I of England who was also James VI of Scotland, in 1625. He also inherited the
title of King of Ireland, making him the King of the three Kingdoms, England,
Scotland and Ireland. While this might be thought of as a source of strength,
it turned out to be a cause of very grave problems for the King (chief executive).
Due to serious money problems (see below), Charles spent a fair bit of time
playing the interests of one of his kingdoms off against the others, in the
hope that he might remain precariously perched on top of, and in control of his
unruly lands. Part of this exercise
suppressing various revolts that sprang up in both Ireland and Scotland that
weakened his position in England.
His reign did not
begin particularly well. He married Henrietta Maria, a member of the Bourbon
family (then on the rise), who was also a Roman Catholic. In a strongly
Protestant country, and one where Parliament was dominated by Puritan and Anglican
interests – including a tranche of bishops in the House of Lords – this
immediately set the King in a somewhat adversarial situation with his chief
advisors, and financiers.
The situation for
the King in Scotland was not helped when an Act of Revocation (an evocative
word today) redistributed lands grabbed from the church since the Reformation
by the Scottish aristocracy, a group whose support the King actually needed.
Parliament dismissed one of the King’s chief supporters and executives, George
Villiers, the Duke of Buckingham, after he failed to rescue the Huguenots in La
Rochelle. In order to protect his loyal supporter, the King then prorogued
Parliament in 1626, after only one year into his reign.
The King, in need
of funds to conduct expensive foreign and regional wars, recalled Parliament in
1628. As part of a deal to secure funding, Parliament presented a Petition of
Rights to the King, which he reluctantly accepted. The Petition of Rights
included the following conditions:
on non parliamentary taxation
ending of forced billeting of soldiers
ending of imprisonment without due cause
on the use of martial law.
Parliament firmly restated principles contained in the Magna Carta and on the
use of Habeas Corpus which had been eroded with the passage of time.
Thus the decision
to prorogue Parliament was closely associated with deeper debates about
constitutional and policy issues as well as issues around the fundamentals of
the role of Parliament in governing England. After Parliament was prorogued in
1629 it did not meet again until 1640.
And it was during
this time, referred to as the Tyranny, that other important constitutional
issues festered, just as the situation in Scotland and Ireland continued to
deteriorate. Not the least of it being efforts by the Chief Executive to raise
funds without having to call Parliament by resorting to such ruses as ship money.
Scotland falls off the
and loyalties played a substantially greater role in the seventeenth century
than they do today. Religious sentiments were often mixed with nationalist
feelings as well.
In 1628 the King
appointed Laud as Archbishop of Canterbury, the head of the Anglican church. He
leant towards practices closer to the Catholic church, unfortunate given the
Calvinist protestant leanings in another direction in Scotland, where the
Reformation had been far harder than in England. In 1637 the King tried to
impose Anglican, Church of England, rites on Scottish Presbyterians, which infuriated
them. This drove the Presbyterians to form a group of Covenanters, who were
determined to defend their religion at all costs. Trust broke down between the
Covenanters and the Scottish monarchy (Charles I). The Covenanters went on to
raise their own army ,
that then defeated an army sent up from England to restore “order” in Scotland.
refusal to recall Parliament came home to wreck his plans and hopes for
remaining in control of Scotland. An English army, raised mainly from levies in
the North was poorly equipped and trained and armed with bows and arrows. It
never came to a proper fight, yet while negotiations continued, the victorious
Scottish army invaded Northumberland and Durham. With no funds at that time, Charles
had to sign the humiliating Treaty of Ripon effectively ceding control of
Durham and Northumberland, including the city of Newcastle, until various costs
of the war could be paid by the King to Scottish forces.
This “shock” from
the North was instrumental in forcing the King to recall Parliament in order to
raise funds by which to conduct “foreign” policy and wage more war. This led to
calling of the Short Parliament that sat for less than one month, from 13th
April 1640 to 5th of May 1640 – a point the present day Prime
Minister might want to recall.
While the Chief
Executive tried to get Parliament to raise additional funds for the war in
Scotland, Parliament was much more concerned to bring petitions about the abuse
of Royal power and privilege. Parliament insisted on these being dealt with before
producing any additional funding, in similarity
to the current stance of Parliament refusing to hold another general election
until the Bill to extend Article 50 has passed into law. The Short Parliament refused to authorize any
new taxes until the King agreed to abandon ‘ship money’. The King said that he
would only abandon ship money if Parliament would grant him enough money to
re-open the war with Scotland. Parliament refused and was dismissed after three
weeks. Afraid that a full admission would have to be made about the disastrous
situation in Scotland to Parliament, Charles decided to prorogue Parliament,
and in essence run away. In a similar move today, the current PM is unwilling
to provide a full account of his planned new Brexit deal with the EU for fear
of admitting that it is a complete sham. Like Charles before him, he is running
away from Parliament.
But after this
prorogation pique, it remained clear that the King simply had to recall
Parliament again, since he was entirely dependent on it for new funding,
possibly realizing that his eleven years of Tyranny had failed.
Parliament takes control
This ushered in
the famous Long Parliament that ran from 1640 to 1660, thus outliving Charles
and indeed most of its original MPs too. It was called on November 3rd
1640, and it seized control of the prorogation process, bypassing the monarch
entirely, something the current Parliament might want to revisit.
been called by Charles purely to raise additional finance. Parliament had
different ideas and started to impeach two key supporters of the monarch,
William Laud, the Archbishop of Canterbury, and Thomas Wentworth, the Earl of
Strafford. Laud was blamed for introducing reforms against the interests of the
Puritans, while Wentworth was accused of treason in part due to his work in
raising a royal army in Ireland that could have been used against Parliament.
Stolen documents indicated that Wentworth was willing to use an army raised in
Ireland against the English Parliament. After a lengthy trial and the use of
the Act of Attainder, Wentworth was executed on 10th of May 1641.
This was then
followed by a series of steps including the Triennial Act that ensured that
Parliaments had to be called at least once in three years – effectively setting
a time limit on the period a Parliament could remain in office – independent of
the monarch’s wishes.
There were a large
number of other complaints Parliament wanted to make about royal behaviour and
the overweening power of the executive since 1625. These were compiled by John
Pym in the Grand Remonstrance. It
was handed over to the King on December 1st 1641
No response was
forthcoming from the King, so Parliament went ahead and published the Grand
Remonstrance. The King eventually replied on December 23rd 1641. He
refused both to remove the bishops from Parliament. and to remove bishops from
their positions in the church of England. He also refused to sack other ministers.
This hardening of
the fronts between Parliament and the King then led to a succession of events
that greatly contributed to the breakdown in trust between the Chief Executive
and Parliament. The King tried to seize 5 MPs and one Peer by marching into the
House of Commons. They had fled. This was the last time a monarch stepped into
the House of Commons.
willingness to sacrifice his chief advisor has similarities with the current
PM’s willingness to expel 21 leading members of his own party simply on the
grounds they disagree with him.
The Irish Backstop
and history of Ireland and England are complex and very often unhappy. It is
ironic that the discussions on the Irish Backstop in the twenty-first century
can trace their roots back to developments as long ago as the sixteenth and
To recapitulate on
the modern day situation, the Good Friday Agreement was guaranteed by four
parties in Northern Ireland, representatives of the Protestant community in
Ulster, representatives of the Catholic community in Ulster, the British and
Irish governments. It was an essential part of the agreement that both Britain
and Ireland were members of the European Union, who could act as something of
an honest broker to keep the arrangements on target. It was also convenient in
that policy changes in both Eire and the UK would be moderated and channeled in
a consistent direction as a result of the EU, rather than being conducted on a
bilateral basis. And there is little doubt that the arrangements succeeded in
bringing peace to the island of Ireland, with the prospects of “ever closer
union” suggesting that at some point, an increasingly irrelevant border for
economic purposes, would possibly cease to matter for political reasons as
It has been
extraordinary how little this appears to count amongst dyed-in-the-wool
Brexiteers in England, who remain as ignorant of Irish affairs much as their
predecessors were in the seventeenth century.
It is a truly
convoluted story, since the original religious divisions were caused by the
establishment of the Ulster plantations by Charles’ father, James. Protestants
from Scotland – Presbyterians in part – were offered land, as a means of
pacifying the angry Catholic population who had rebelled against English rule.
In the summer of
1641, a revolt broke out in Ireland.
Parliament critical of the King’s handling of matters in both Ireland
and Scotland, passed propositions that the Parliament and not the King should
be responsible for the country’s defence. This was made a condition if the King
was to obtain any additional funds.
The Irish revolt
started as a reaction to and fear of an invasion by both Parliament and
Scottish Covenanters of Ireland – a fear that came to be realized much later.
There were basically two groupings in Ireland on opposite sides. One consisted
of Gaelic Irish and old English Roman Catholic aristocracy (dating back to
medieval times). They were opposed by a combination of ethnic English
inhabitants, and Protestants and Scottish Covenanters (Presbyterians) settlers.
In October 1641 a
Catholic rebellion broke out in Ulster and quickly spread across the country.
Many Protestant settlers were driven from their homes and the rebellion became
war. The Catholic revolt led to the formation of a Catholic Confederation which
basically ran most of Ireland until the 1650s.
Thus at this
critical time the Triple Stuart crown basically fell apart, with disastrous
consequences for the monarchy. It could be argued that it was into this power
vacuum that the English Parliament decided to step. As has already been seen,
the raising of a royal army in Ireland under Wentworth’s management was seen as
a red flag to the Parliamentary bulls in England.
Covenanters to the rescue?
So how was the situation to be retrieved? In steps that have echoes in
the bargaining taking place around the Brexit crisis, the Chief Executive tried
to play the various sides against each other – to no real effect. The King
tried to “bribe” Covenanters in Scotland to invade Ireland and help
re-establish royal rule there.
Given Charles’ hamfisted efforts to get the Covenanters on side earlier, this
seems scarcely credible. Charles realized that in a Protestant England he could
not be seen to rally his forces in Catholic Ireland as a means of
re-establishing his power in England –
a mistake made by James II later. So for the executive, the situation was
How did the situation look from Parliament’s and the Covenanters point
of view ? the answer is that it looked very different.. Just as a Roman
Catholic confederation became the effective government over much of Ireland, so
the Covenanters post the Treaty of Ripon (the surrender document of the
English) became the effective government over much of Scotland. As an act of
religious solidarity they sent soldiers to Ulster to protect Protestant
settlers there, and supported English forces there, thus contributing to the
Irish civil war.
The more significant development was that the religious similarities
between the Scottish Presbyterians and the Puritans in the English Parliament
led to a coalition of interests that was to tilt the outcome of the English Civil
War decisively in favour of Parliament.
In 1643, when the Civil War was still in the balance, English
Parliamentarian forces were looking for help from their co-religionists in
Scotland. Military help was offered from Scotland on the condition that the
Scottish (Presbyterian) system of church governance was adopted in England.
While this led to a huge debate in England, it led to the Solemn League and
Covenant Treaty between the English Parliament and the Scottish Covenanters.
This entailed a further reform of the English church and a consolidation of the
Presbyterian position in Scotland – although this was not explicitly mentioned
in the documents.
This appeared to settle things in Scotland and for the Parliamentarians.
A well trained and powerful Scottish army headed south, helping to suppress
royalist forces in the North of England. Unfortunately, this bid for power by
the Calvinists in Scotland then unleashed a civil war in Scotland itself,
eventually won by the Covenanters.
And how did it end?
The Civil Wars eventually
came to an end, largely as a result of the invention of the English New Model
purposefully trained military force, properly funded, and led by Oliver
Cromwell. However, in the various peace moves, Charles, who surrendered to the
Scots in 1646, was approached by the Covenanters who tried to persuade him to
adopt their cause! Further disagreements, and efforts by Charles to play one
side off against another, led to him being transferred back to England, where
he was ultimately tried and executed – all under the auspices it has to be said
of the Long Parliament, that was no longer under any pressure to prorogate
This history shows
clearly how developments in England were heavily influenced by both events and
forces in Scotland and in Ireland. In 1643 the decision by Parliament to link
arms with the Covenanters was critical to their final success. And in the lead
up to the Civil War it was the problems of funding military action by the
Stuart monarchy to defend its position in Scotland and Ireland that created the
conditions that led to the supremacy of the Long Parliament, and to the
establishment of Parliamentary government.
Echoes of the past in the
The situation in
the United Kingdom today bears some similarity to events in the seventeenth
century. There is an executive (admittedly now part of Parliament) that is
trying to force through a policy that does not enjoy the support of the
legislature, just as Charles did. The executive is riding rough shod over the
opinions of the western and northern nations of Ireland and Scotland, as was
the case in the seventeenth century. The executive is also dismissing the views
of the Remainers who may well now form a majority in both the country and in
Parliament. Under pressure, the executive today is willing to sacrifice its
supporters in an effort to try and simplify things and gain access to a
critical resource – money in the case of Charles, achieving a parliamentary
majority in the Brexit situation. The efforts to push through executive
policies are made by appealing to the “will of the people” – the 4% majority
achieved in the 2016 referendum today. In the lead up to the Civil War, Charles
stood by his “divine right”, tempered by a realization that he had to bend to
Parliament’s will, sometimes, when it suited him. In both situations the advice
of advisors was often thrown overboard, and some advisors were even sacrificed.
Laud and Wentwoth for Charles, many ministers and recently over 20 long
standing MPs of the Conservative party who have been expelled for disagreeing
with the “monarch” or CEO. 
The elevation of
the “will of the people” bears a resemblance to the divine right of kings. The majority
in the 2016 referendum was in fact only 37% of the registered voters of the UK,
and therefore does not represent an absolute majority of the people. Yet this,
plus the official status of the 2016 referendum as being advisory only, leaving
the final decision to Parliament, appears to have been ignored by the Hard
In the seventeenth
century there was, if you will, a “coup” from the monarch, as he tried to rule
without Parliament. This was eventually followed by a swing back to pure
Parliamentary rule, without a monarch. In the subsequent restoration of the
monarchy a number of improvements made by the Long Parliament were undone, and
remain undone. These include:
right to self prorogation, without royal assent being needed
expulsion of bishops from the House of Lords
rights of individual freedom (eroded in modern times e.g the Prevention of
overweening power of the executive at the expense of the legislature
Over the 3 years since the Brexit referendum the
country has become more and not less polarized. Opinions have hardened on both
sides. Extensive materials and analysis prepared by the Remain side have been
ignored or rejected by the Brexiteers. Efforts by the previous PM to find a
compromise with the EU have foundered after the ruling Conservative party could
no longer agree within its own ranks as to how to proceed. While it might be
precipitate to think that England is on the brink of an actual civil war,
conditions today bear an uneasy resemblance to those of nearly 400 years ago.
The Scottish Covenanters were trained by battle hardened Scottish mercenary
troops who gained their experience in the 30 Years War that was raging at this
an earlier point, Charles had tried to use Irish mercenaries to put down the
rebellion in Scotland during the Bishops War.
This appears to contradict the earlier policy of raising a royal army in
Ireland for possible use in England.
March 2016 saw Myanmar’s first democratically elected government
to take office since 1962, though under a constitution that gives veto powers
to non-elected representatives. Before
it took office the National League for Democracy (NLD) set out a new direction
for the country, stating that it would ‘strive for the establishment of a
genuine federal democratic union base on the principles of freedom, equality
and self-determination’. However, the challenge is not only to move from a
military dictatorship to a federal democracy, but also to move from an isolated
war economy to a market economy with significant international linkages.
Professor Stefan Collignon discussed these twin challenges, and the important role of public finances in them, at our event.
He is Professor of Political Economy at Sant’Anna School of Advanced Studies, Pisa, and International Chief Economist of the Centro Europa Ricerche (CER), Roma. He is currently a Visiting Professor at the University of Harvard.
The policy of exiting the European Union (EU) pursued by the present United Kingdom (UK) government has produced many fraught complexities. Some involve the external orientation of the UK, centring upon but extending well beyond its trade relations. Others pertain to the internal political arrangements of the UK. Falling within this latter category are questions involving the balance of power between the devolved and UK legislatures and executives in the prospective post-Brexit environment, and the place of both within the wider constitutional system of the UK.
The promise of the ‘leave’ campaign in the lead-up to the EU referendum of June 2016 was that departure offered a means of ‘taking back control’. Questions that this claim prompts, and that have recurred following the vote, are: who will assume this repatriated authority, and over what? A connected issue that has not yet received the same level of attention is more fundamental still. Eurosceptic accounts of the EU often depict it as a self-serving entity imposing itself on member states, lacking the legitimacy that can only derive from genuine consent from those countries and their populations to participation in this continental polity. Brexit, according to the logic of such narratives, represents a reassertion of the popular will leading to the recreation of a legal and constitutional order outside the EU, founded in the agreement of the public. A close examination of the handling of UK exit from the EU in relation to the devolved institutions, their authorities and their populations is one way of testing the validity of such a perception. It can cast light on whether the UK constitution and any new features it is about to take on after Brexit meet the high standards of government by consent to which advocates of Brexit purport to subscribe.
If and when powers are repatriated from the EU, they will need to be wielded at some level in the UK. The UK, Welsh and Scottish governments have agreed in principle that certain responsibilities – including some that might fit within policy areas that are in general devolved – must be exercised centrally, if the coherence of the UK and its single market are to be preserved (though the Welsh and Scottish governments have also expressed a desire to maintain regulatory alignment with the EU single market after departure). In October 2017 the UK, Welsh and Scottish executives issued a statement of their shared outlook, referring to the importance of maintaining the ‘UK internal market’, the need to comply with ‘international obligations’, the ability to secure ‘new trade agreements and international treaties’, the ‘management of common resources’, the guaranteeing of ‘access to justice’, and the maintenance of ‘security’. However, securing agreement about the precise powers involved, how they should be identified, and who should make such decisions, has proved a difficult proposition. At the centre of the dispute that has arisen has been the European Union (Withdrawal) Bill, completing its parliamentary stages at the time of writing. This paper considers the implications of this controversy for our understanding of the territorial constitution of the UK, and the basis on which it is composed.
The rise of devolution
If Brexit comes about, whatever it entails, it will not amount to a restoration of the UK as it was at the point of accession to the Treaty of Rome in 1973. Changes in the outside world cannot be fully reversed. The UK will have no choice but to continue to engage with the network of trading blocs, supranational institutions and associated rules and procedures that it has helped shape over the past four-and-a-half decades. Nor can post-1973 internal transformations simply be undone. Some of these domestic developments have been a direct consequence of participation in continental integration and the supremacy of European law that it necessitates for Member States. It is a particular irony of the Brexit process that the most consuming legislative challenge it has created for the UK has been the attainment not of a break with the past, but of legal continuity after the point at which UK membership of the EU ceases. Another fundamental shift internal to the UK in the period since 1973 – the rise of devolution in Wales, Scotland and Northern Ireland – was not a direct consequence of participation in the European project. Nonetheless the existence of these tiers of governance creates immense complications for the effort to leave, and simply to disregard it is not politically viable.
Devolution has become an accepted part of the UK constitution. It was introduced to Wales and Scotland – and reestablished in Northern Ireland – from the late 1990s onwards. In each case, the decision to form elected legislatures and associated institutions was approved in advance by referendums held in the territory concerned. In this sense, devolution is grounded in an exceptional form of popular approval (with a further such vote held and won on the extension of devolution in Wales in 2011). Advocates of leaving the EU often refer to the existence of an irresistible imperative created by the referendum of June 2016, to which the structures and rules of our constitutional system are subordinate. Such a premise is hard to reconcile with established principles of representative democracy. Furthermore, even if accepted on its own terms, it faces difficulties. In as far as it impinges upon devolution, this supposed overriding obligation to leave is confronted with sources of legitimacy the same as its own.
The salience of this conflict is magnified by the fact that in two of the devolved territories, Scotland and Northern Ireland, there were ‘remain’ majorities in June 2016. While it is arguable that a referendum of the whole UK might properly take precedence over a popular vote in one of its component parts, UK constitutional thought in this area is not fully developed. Should, for instance, a decision for the whole UK that clearly engages the interests of devolved systems require more than a simple majority? Should there be a threshold of some kind, such as an absolute majority of the electorate including abstentions supporting a change, or a supermajority of two thirds of those who take part? Ought there to be a vote for change in every sub-unit of the UK, or at least a majority of them? Such issues were certainly not thoroughly investigated or widely discussed in advance of the 2016 EU referendum. There is no ‘written’ UK constitution in which such rules could be included, and none of the referendum results involved had legal force, leaving not only their precise meaning but also their importance relative to each-other obscure.
Since their foundation, all three devolved institutions have experienced aggregate expansions in their scope for action. Some of the most recent enhancements, for instance those contained in the Scotland Act 2016 and Wales Act 2017, were implemented shortly before or even after the EU vote of 2016 took place. Devolution, therefore, is not only politically entrenched, but is dynamic in nature. It is a force that the present government has to take into account while pursuing its Brexit policy. Indeed, the advent of devolution could be said to have marked a fundamental change in the nature of the UK constitution, in which power is no longer concentrated at the Westminster/Whitehall level, but shared between this tier and its devolved equivalent. The joint intervention by the respective first ministers of Wales and Scotland, Carwyn Jones and Nicola Sturgeon, in opposition to aspects of the European Union (Withdrawal) Bill, to which they proposed a series of amendments, is significant in this regard. It suggested a shared conception of constitutional norms regarding the autonomy of the institutions they represented, that they were asserting against potential encroachments.
In a sense, the UK might be held to have taken on some of the characteristics of a federal system, within which the devolved territories are akin to states, while the governmental bodies based in London resemble federal organs. Indeed, the Welsh government has promoted the idea that the UK constitution should be viewed partially from a federal perspective. The discussion currently taking place about the powers it is necessary to reserve centrally in the UK is the type of debate that might be expected during the formation or recalibration of a federal constitution. Moreover, both the Welsh and Scottish governments are motivated by a European outlook (notwithstanding the ‘leave’ result in the former nation). One of the purposes for which they seek to deploy the powers they hope to obtain at devolved level is to maintain alignment with the Single Market (though how far this stance might prove to be compatible with their commitment to retaining a unified UK market remains to be seen, if the UK government seeks to diverge from the EU regulatory framework). Once again, a federal perspective is relevant, with two sub-units of an exiting Member State exhibiting an attachment to a wider continental polity – and appearing to prefer compliance with EU law to the prospect of being subject to the Westminster Parliament.
Limitations upon devolution
To some extent circumstances following the 2016 referendum have served to draw attention to the importance of devolution to the UK polity, and the changes to the underlying system it might imply. But this highlighting has come about through the assertion of contrasting, even conflicting, models which – though they are not necessarily compatible with each-other – have impetus of their own, and pose a threat to some aspects of devolutionary governance as it has developed. One challenge is relatively novel in the UK constitutional context. It rests on the view that, through the 2016 referendum, the UK people as a whole made a decision by which they are all bound. That majorities in two devolved territories, Scotland and Northern Ireland (and in London) voted to remain has, on this interpretation, no bearing either on the decision to leave, or even on the type of departure that should be sought. Responsibility for interpreting and implementing this result, according to this school of thought, falls primarily to the UK executive. Unsurprisingly, the main advocates of this outlook are Brexit enthusiasts and UK ministers (some of the individuals concerned fall into both categories, others only one). Over time limited concessions have been made to the UK Parliament and devolved institutions as having a secondary role in shaping the outcome. But this approach leaves no room for meaningful engagement from such groups, that are perceived as a source of unhelpful distraction, or as seeking to dilute or perhaps prevent Brexit.
A second perception – not entirely congruent with the first – that draws attention to the importance of devolution while challenging it, has a longer established place in UK constitutional perception and practice. It is founded in the doctrine of parliamentary sovereignty. The relationship between this theory and the circumstances of Brexit is complex. Throughout its development a core feature of Euroscepticism has been the rhetorical veneration of parliamentary sovereignty, and the claim that it is incompatible with UK participation in continental incorporation, a project that is partly for this reason undesirable.
However, the claimed commitment of those who advocate leaving the EU to the legal supremacy of the UK Parliament has proved inconsistent with their post-referendum attitude towards Parliament. Eurosceptics exhibited hostility to the idea that express statutory authority from Parliament should be required for the UK government to activate Article 50 of the Treaty on European Union, the act required to instigate the departure process. They preferred the idea that the executive should be able to operate on its own discretion, deriving legitimacy from the exercise in direct democracy of June 2016, rather than the representative institution in Westminster.
Furthermore, supporters of leaving have disparaged the idea that Parliament should be able substantially to alter the negotiating position of the government (for instance, with regard to the Customs Union), or that it should have the opportunity to vote for the UK to seek to prolong or terminate the process of leaving. However, the doctrine of parliamentary sovereignty still has uses from this perspective, for so long as the Westminster legislature is willing to accept the other premise promoted by ‘leave’ advocates, namely that of its being subordinate to an overriding popular will expressed on 23 June 2016. For it is through the traditional principle that an Act of Parliament is the ultimate source of legal authority that any objections raised from devolved level can, ultimately, be overcome.
In bringing about an intersection between competing constitutional norms, the UK government policy of leaving the EU has revealed much about devolution and its position within the wider system, and will continue to do so. The UK government has felt it necessary to negotiate with the devolved executives through the specifically established machinery of the Joint Ministerial Council on European Negotiations. It has also made various concessions to them. Crucially, it has introduced amendments to the European Union (Withdrawal) Bill that have the effect of reversing a key presumption in its handling of the distribution of powers between the devolved and UK legislatures. The initial provisions, contained in clause 11 of the bill, created an assumption that a repatriated power resided with the UK Parliament unless express provision was made to the contrary. The objection to this proposal was that it contradicted the reserved powers model, under which the only powers located at the centre were those specifically allocated to it. Clause 15 of the amended European Union (Withdrawal) Bill now gives expression to the principle that the default position is the devolution of a law-making power.
In pursuing their opposition to aspects of the Bill, the Welsh and Scottish governments, alongside the use of coordinated joint public intervention, deployed two tools: the threat of withholding ‘legislative consent’ to the Bill; and the introduction of bills into their own legislatures, that would provide legal continuity in terms they deemed acceptable (though there are differences between the devolved bills). Clearly these approaches have purchase within the UK political and constitutional environment. That a UK government has had to contend with and make concessions to outside forces demonstrates how much the UK constitution has changed in the past two decades.
However, the experience since June 2016 has also revealed the limitations to which this transformation is subject. The devolved systems and their powers may be politically entrenched, but they lack any special legal protection. The Scotland and Wales Acts of 2016 and 2017 respectively contained commitments to the principle that the existence of the devolved institutions in the nations concerned could only be revoked following consent through referendums in the territories involved. They also included the undertaking, previously existing only as a political understanding or convention, that the UK Parliament would ‘not normally legislate with regard to devolved matters without the consent of the’ devolved legislature concerned. However, in the Article 50 judgement of January 2017, the Supreme Court went out of its way to note that it did not regard these provisions as being enforceable in a court, and stressing that the commitments they described were only political in nature, despite their being included in statute. Ultimately, the UK government, provided it has the consent of the UK Parliament, can overrule its devolved equivalents. Indeed, UK ministers have been careful throughout their negotiations with the devolved executives to reserve their position, allowing for the possibility they will, if necessary, proceed without approval from devolved level. At the time of writing, while the Welsh executive has– while expressing reluctance about doing so – obtained legislative consent to the European Union (Withdrawal) Bill, the Scottish Parliament has withheld it. Parliament is therefore on the brink of passing an Act notwithstanding the objections of a devolved legislature demonstrating where the ultimate authority still resides.
The legal and constitutional imbalance between the devolved and UK tiers is further emphasised by the handling of the continuity bills introduced to the Welsh and Scottish legislatures. Though passed by the legislatures concerned, they were both referred by the UK government to the Supreme Court to decide whether they fall within the competence of those legislatures. Under this procedure bills do not become law unless the legislation concerned is deemed to be within the devolved remit. There is no corresponding means of challenging the constitutionality of an Act of the UK Parliament (the closest equivalents being the review of compatibility with European law and with the European Convention on Human Rights). The challenge to the Welsh continuity legislation has been dropped in accordance with an agreement formed between the Welsh and UK governments over amendments to the European Union (Withdrawal) Bill and associated commitments. However, Supreme Court hearings regarding the European Union (Legal Continuity) (Scotland) Bill are scheduled for 25-26 July. Assuming no agreement is reached between the respective governments in the interim, if the bill is found to be within the powers of the Scottish Parliament, the possibility remains that the UK Parliament can legislate to supersede the Scottish law with its own Act. To do so will be in some respects politically unappealing. But to do otherwise might create other political difficulties. It could also undermine the existing policy of exit followed by the negotiation of new trade agreements. On the other hand, if the Supreme Court rules the bill outside the powers of the Scottish Parliament significant limitations upon the Scottish Parliament will have been made explicit in a different way.
The combination of the Welsh and Scottish governments during 2017 to present a united opposition to the UK government proposals as encapsulated in the European Union (Withdrawal) Bill was a significant event from the perspective of the politics of the UK constitution. But the extent to which it suggested the pursuit of a shared vision of the UK polity should not be overplayed. The Cardiff-Edinburgh alliance has been partly one of temporary convenience. The ultimate goals of the Labour executive in Wales and the SNP administration in Scottish diverge. The former seeks a more federal structure for the UK; the latter retains the objective of leaving the UK altogether. The engagement of the Scottish government, in collaboration with the Welsh government, in discussion and negotiation about the future constitution of the UK was arguably in large part a tactical matter. It coincided with an apparent loss of political and electoral momentum for the cause of Scottish independence. To be seen to have tried to engage in good faith with the UK government, but to have been treated in an unfair, overbearing fashion, might open the way for a revival of the independence option. That, ultimately, the Welsh came to terms with the UK government, while the Scottish – as yet – have not done so is evidence of their divergent perspectives.
The limitations upon devolution as a harbinger of a new constitutional model for the UK, perhaps federal in its potential, are illustrated in another fashion. It is uneven in application. A third devolved territory, Northern Ireland, has been absent from negotiations (aside from the presence of official observers), because its executive is not presently operative. What policy the Northern Ireland Executive would be able to form in this area, were it functioning, and whether and how far it would align itself with Wales and Scotland, is unclear. Further differentiation manifests itself in the way that all three devolved systems function differently to each-other, and the remainder of the UK, that is to say England, where the majority of the UK population lives, lacks any form of devolved legislature at all (though there is limited devolution to London and to some local authorities – or combinations thereof – in England). The asymmetrical nature of devolution in the UK makes claims about the emergence of a comprehensive system difficult to assert. Furthermore, unlike under many federal constitutions, the territories are not formally incorporated into the legislative process. The Joint Ministerial Committee is a non-statutory body that does not take binding decisions. If it is an embryo for some kind of federal council or chamber, it is in a very early stage of gestation.
Implications for the future
On the basis of this discussion, certain conclusions can be advanced. The UK is in the process of refounding its legal and constitutional order, to accommodate Brexit. The central government claims to be the custodian of an irresistible obligation to implement a particular response to the referendum of 2016, that legitimises its plans for changes impacting upon the fields of operation of the devolved institutions. The UK executive is willing, in the last resort, to draw upon the legislative supremacy of the ‘sovereign’ Westminster Parliament to impose measures it judges to be appropriate. Whatever arrangements are established may be presented as only provisional in nature. However – as those supporters of Brexit who fear the adoption of ‘backstop’ customs arrangements know – that which is devised as temporary can prove to be enduring. The UK could, therefore, be in the process of a fundamental constitutional reconfiguration that partially reverses devolutionary patterns of development of the preceding two decades. This project is taking place in a fashion that is not wholly consensual, and involves the UK government deploying, or at least threatening to deploy, parliamentary sovereignty for purposes of legal coercion.
Such an approach could be seen to be in accordance with the UK constitutional tradition. The Union has never been a partnership of equals, and at every stage of its creation, England was clearly the preeminent force. Thus while the UK is sometimes depicted as an unexceptionally stable state, it is also characterised by internal tensions, involving the places of Ireland, Scotland and Wales within it. Brexit has already exacerbated some of these tendencies and raised renewed doubts about the future of the Union. To impose a post-Brexit arrangement in the face of present objections seems, even from the point of view of the narrow self-interest of the UK executive and the governing Conservative and Unionist Party, a questionable act. The system itself will be vulnerable to the charge that it is inherently flawed and lacking in democratic legitimacy.
Moreover, arguments currently taking place are likely to recur in some form in the future, on occasions when – assuming Brexit goes ahead – the UK government wishes to diverge from EU law in a way to which one or more of the devolved executives object. Constitutional arrangements after exit could consequently create a particularly unstable dynamic. It is already clear that, in the short term, the judgement that a referendum on EU membership might resolve controversy over the issue was mistaken, and that the opposite has proved to be the case. Even if the UK is outside the EU, it is likely that it will need to make regular decisions about its relationship with this organisation and the regulations it produces, and that consensus about the appropriate approach will be absent. One, but surely not the only, source of such disagreement will be the devolution dimension.
However, it remains possible that the UK will not leave the EU at all. It is also plausible that the UK will depart on terms that make meaningful divergence from European law difficult or impossible; or that any theoretical discretion the UK possesses will be rarely if ever applied in practice. In such circumstances the current disputes about where to locate repatriated powers will come to resemble a dispute between relatives over an inheritance that ultimately amounts to little. Like such a disagreement, it will have been revealing regarding the nature of the relationship between those involved, and will have been damaging to it.
A post-Brexit constitutional system founded on an imbalance of power and the use of legal compulsion, thereby incorporating instability, would be in keeping with the history of the UK political system and in this sense would represent a promotion of the traditional constitutional values that advocates of Brexit often claim to support. For those who prefer a different approach, a federal system merits consideration. It could be of particular value because of the potential to encompass not only the dispersal of power, but the incorporation of the territories into central decision making, preferably through their inclusion in a federal chamber in the legislature. This presence would give material grounding to some of the ideas of shared sovereignty that may seem implicit in devolution but are not yet fully realised. Brexit has exposed gaps and tensions in the UK system. It has also demonstrated that in certain areas, despite the development of devolution, the UK is far from a fully federal system. A more decisive shift in this direction could be a means of addressing some of the problems connected to
In his latest book, Andrew Duff describes how the EU was born at a time when federalism was seen as the only way to lasting peace, but how continuing tension between federalists and nationalists has left the Union unable to fulfil its promise. He argues that the rise of impressive institutions such as the European Parliament, Central Bank and Court of Justice has not been matched by the emergence of a capable democratic executive: so the problem of weak governance at the European level must be rectified if the risk of illegitimacy is not to grow.
President of The Spinelli Group; former Liberal Democract MEP (1999 – 2014);
Sir Stephen Wall Former Ambassador and European Adviser to the British Prime Minister
Dr Imke Henkel, Senior Lecturer in Journalism, University of Lincoln
Local to Global – Is federalism the answer to national populism?
16th April 2018
Tis event marked the launch of a new Federal Trust pamphlet by Dr Michael Lloyd, in which he discusses the potential of genuinely federal institutions at the local, national and global level as providing an answer to the current emergence of populist nationalisms. Dr Lloyd uses the example of Switzerland to show how decisions can be taken at the lowest appropriate level while encouraging democratic participation of citizens at all levels of government, leading to a “citizens’ democracy”.
London is the UK’s undiscovered country and it is time we recognised it as the UK’s fifth constituent part by granting it the devolved political powers it deserves. As Tim Oliver argues, London’s size, unique population, economy, politics, identity, society, place in the UK, Europe and the world all add up to make it stand apart from any other part of the Union. A devolved government for London would more than any other constitutional change help to rebalance the UK towards a federal union. It would give the metropolis the freedom to develop as it needs and be a big step towards reforming an unsustainable and unhealthily centralised UK and English state.